MAKUMIRA FILLING STATION LTD VS FBME BANK LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT ARUSHA MISC. COMMERCIAL APPLICATION NO. 12 OF 2017 (C/F Commercial Case No. 13 of 2014) 1. MAKUMIRA FILLING STATION LTD > 2. CHARLES AQUILINE MAKOI 3. KELVIN CHARLES MAKOI > ............ APPLICANTS (As Administrator of the estate of the late CALISTA CHARLES MAKOI) J VERSUS FEME BANK LIMITED................................................ RESPONDENT RULING: MRUMA, J: This application is for extension of time within which the Applicant can file an application for leave to appeal to the Court of Appeal against the decision of this court in Commercial Case No. 13 of 2014 between FBME Bank Limited Vs Makumira Filling Station Ltd and 2 others. At the hearing of the Application the court raised an issue as to whether leave i was required before the Applicant can lodge an appeal to the Court of Appeal against the decision of this court in exercising its original jurisdiction. Mr. Loomu Ojale counsel for the applicants was of the view that leave is required because though basically Commercial Case No. 13 of 2014 was for payment of defaulted loan but that loan was secured by a mortgage of the right of occupancy as pleaded under paragraphs 13, 18, 19 and 22 of the plaint and this makes the matter a land case which leave must be sought and obtained before one can appeal. On his part, Mr. Lusiu Petter, Counsel for the Respondents was of the view that because in Commercial Case No 13 of 2014 the Respondent was not enforcing securities but the loan terms by claiming the outstanding amount, then leave is not required. The counsel said that the fact that mortgage was pleaded does not make the matter a land case. I do agree with Mr. Lisiu Petter that the mere fact that a fact is pleaded in the plaint does not bring the basis of the whole claim (suit) under that fact. There can be no doubt that in Commercial Case No. 13 of 2014 the Respondent was enforcing payments of defaulted loan. The issue of securities which secured the said loan was not litigated in Commercial Case No. 13 of 2014 therefore it cannot be raised in the Court of Appeal. It is trite law that if the issue was not raised by the parties during trial it cannot be raised as a ground of appeal. Thus, in any event since Commercial Case No. 13 of 2014 was tried as a Commercial Case, it cannot turn into a land case at the appeal level. 2 In determining Commercial Case No. 13 of 2014, this court was exercising its original jurisdiction and in terms of Section 5 (1) (a) of Appellate Jurisdiction Act, (Cap 141 R.E. 2002) leave is not required. That said application for extension of time within which to file application for leave to appeal to the Court of Appeal is found to be misconceived and it is dismissed with costs. A. R. Mruma Judge 24th July, 2018 3